Van Breda: Monday’s Closing Arguments – what to expect?

More than three years have passed since the grotesque triple murders that rocked the affluent De Zalze Estate in Stellenbosch on January 27th, 2015. Monday, February 12, 2018 will mark the 64th day of this extraordinary trial, a trial about a third longer than the Oscar Pistorius trial which stretched to 43 days.

During the three years following the murders of his parents and brother, triple-murder accused Henri, who was barely 20-years-old at the time [he’d emerged from his teenage years just three months before the murder], has matured. He’s become handsome, more confident and, if he had a stutter, at 23 he’s a well-spoken young man.

During the three month hiatus since Judge Desai reluctantly postponed proceedings [at the behest of Henri’s advocate Pieter Botha], Henri and his girlfriend have relocated yet again, while Marli continues to live with a teacher in an undisclosed location. Marli would also have received her matric results some time in early January.

On February 12th, when the court reconvenes, what can we expect?

Expect fireworks. The public are often of the view that the first day of a trial, and the last day, and perhaps the accused’s evidence, are the sum total of a trial. The closing arguments are a distillation from opposing counsels of matters of fact. A certain amount of conjuring is done here, to persuade a judge either that there is absolute certainty on a particular issue, or that there is absolute uncertainty. Both counsels must juggle which facts they wish to bolster, which facts of the defense [common cause] they wish to use against the opposing case, and how best to discredit or otherwise make a mess of opposing argument, while making their own seem logical and consistent. Although a guilty person may have certain truths playing against them, the fact is, a defense counsel has access to the accused, and thus is in possession of a much greater context of information, which can be used to poke holes in a prosecutor’s contentions and speculations.

First strike. Advocate Susan Galloway will go first, presenting the state’s final closing arguments. These are likely to fill at least the morning session. Going first has a few advantages. The state starts with a clean slate, and if their arguments are clear and vivid, they can powerfully shape and control the mindset no matter what comes afterward.

How long will the arguments last? In the Pistorius case, Gerrie Nel’s closing arguments on August 8th, 2014 [about 18 months after the incident] lasted all day, until 15:00. Once the state was done, Barry Roux asked for an adjournment so he could marinade in the state’s contentions, and kick off with his own, perhaps slightly fine-tuned arguments the next morning. Even Oscar packed away his notebooks as a subtle nudge to indicate his preferences. Judge Masipa consulted with court officials and then elected to sit for “another half hour.” Roux’s closing arguments were thus broken into two segments, but effectively, he also got the last word.

Getting the last word, especially if one provides powerful insights, twists and turns right at the end, can and sometimes does change the outcome of case. Think of Johnny Chochrane’s famous closing: “if it doesn’t fit, you must acquit.” So yes, a closing can discolor the original mindset portrayed by a prosecutor, and foist the all-important doubt onto a court that a defense must rely on to get their client off the hook. Expect Botha’s epilepsy narrative to feature strongly as their “game-changer”.

Closing arguments will not only summarize the respective cases, they also serve to highlight and emphasize the strongest points from each side. What do you think is the strongest aspect of Galloway’s case? Leave a comment and let’s see which aspects she chooses to emphasize. What’s the strongest element of Botha’s case? Does he even have a case? Leave a comment, and let’s see how evenly matched both counsels are.

After closing arguments, court adjourns so the judge [there are no juries in South Africa] can apply his or her mind to the case. In the Pistorius case, the adjournment was for about a month. Arguments were heard on August 8th and 9th, and Masipa adjourned until September 11th. The verdict phase in the Pistorius case lasted two days, and shoddy as the original verdict from the court a quo was at the time, it was unanimous. Masipa and her two assessors inexplicably found Oscar not guilty of murder, premeditated or otherwise.

After the verdict is it over? Three months after Oscar was found guilty of culpable homicide and sentenced to a ridiculous 10 months imprisonment [effectively], the state applied for leave to appeal, and Masipa granted it. Judge’s usually grant appeals, although Masipa refused leave to appeal when the state applied after the second sentence – 6 years for murder – was seen to be too light as well. The state then applied directly to the Supreme Court of Appeal, who granted the appeal and directly elected to sentence Oscar themselves [to an effective 15 years, less time already served].

In the Van Breda case, I expect there to be an appeal after the verdict, which suggests that although the Van Breda case appears to be over at the beginning of 2018, in fact, it’s likely to be a long period of legal struggle, in my view, for Henri.

Bear in mind that five years after Reeva Steenkamp’s murder, that case still hasn’t been concluded either. Oscar has appealed the Supreme Court’s sentence, to the Constitutional Court, and presently remains in legal limbo. The state have filed opposing papers, and now the Constitutional Court must decide whether it’s willing to consider Oscar’s application. The Constitutional Court usually doesn’t involve itself in ordinary criminal cases.

Only the mega rich have the resources to take their cases through the legal washer, and so it’s a matter of access to his enormous inheritance, whether Henri will follow the path pioneered by South Africa’s highest-profile convicted murderer yet.

Sidenote:Interestingly, on the five year anniversary of Reeva Steenkamp’s murder, no South Africans have made any documentaries, and no local reporters have written on the case at all since the Supreme Court of Appeal verdict in December 2017. In the Van Breda case, although three books were written, there’s been a vacuum of reporting on this case since the adjournment in November 2017. When it comes to trial reporting in South Africa, the media seem to have a season for reporting, and an off-season. South Africa is a unique case of a crime infested country that still needs to play catch-up to the true crime trends in other countries.

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